Association
of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943Omnia pro aegroto

Volume 64, No. 10 October 2008

DISRUPTION

"Disruptive" behavior is the subject of the July 9 "Sentinel
Event Alert" by the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO). Such behavior undermines the
"culture of safety," and meets the JCAHO definition of sentinel
event: "an unexpected occurrence involving death or serious
physical or psychological injury, or risk thereof."

This supplies needed support for the "critical spin linking"
that the hospital bar has been promoting, to link "disruptive
physicians" to patient safety and quality care, writes Lawrence
Huntoon, M.D., Ph.D. The real goal: a culture of control.

The Alert implies that a disruptive physician is dangerous
by constantly saying "disruptive and intimidating"
[emphasis added] with the word "unprofessional" also generally
placed in close proximity to these two, reinforcing the linkage.
It also suggests that those who report or cooperate in
investigations need "protection." "Suggested actions" include
"zero tolerance" and an anonymous reporting/surveillance system.

Is This Disruptive Behavior?

Case 1. A nurse in a neonatal intensive care unit notices
that the baby in the isolette next to her patient's is having
subtle color changes, then suddenly turns blue-black. His
pressure "bottoms out completely," but the cardiac monitor shows
a steady 80 beats/min. His primary nurse yells for x-ray and for
a doctor to come treat the baby for a pneumothorax. The nurse who
had first noticed the problem tries to correct her: "It's the
heart; there's no heartbeat." When the primary team
doesn't listen to her, pointing to the electrical activity shown
by the monitor, she pushes them away from the baby, screams for
quiet, listens to the heart, hears no heartbeat, and begins chest
compressions. When the chief neonatologist appears, she slaps a
syringe into his hand and says, "It's a pneumopericardium. I
know it. Stick the heart." He does; the baby's life is
saved.

Case 2. A surgeon raises her voice during a code and tells a
nurse to take her gloves off and cut tape for an endotracheal
tube. An infant, the patient of another physician, is turning
dusky, and rapid action is necessary.

Case 3. An obstetrician, during a difficult C-section,
raises her voice and tells a nurse to put gloves on, put a hand
in the birth canal, and push the baby's head upward. Although OB
nurses routinely perform this maneuver, this nurse is just
standing there.

In case 1, a nurse aggressively interfered with the care of
somebody else's patient, not only yelling at people but shoving
them aside, insisting that her opinion was correct.
Instead of asserting, like the recent JCAHO Alert, that "Any
behavior which impairs the health care team's ability to function
well creates risk," the team talked about how the heart monitor
had fooled them. In Gary Klein's book The Sources of Power:
How People Make Decisions, the incident is an exemplar of
expertise, a "permission story" on when it is okay to make a
fuss, and a warning on how machines can mislead. That was in
1998.

Cases 2 and 3 recently came to the attention of the AAPS
Committee to Combat Sham Peer Review, chaired by Dr. Huntoon. The
sequence is: A nurse files an incident report. The chief of staff
"investigates" and "confirms" the report. There is no
due process for a "first offense," which results in "counseling."
The second offense results in mandatory referral for "corrective
action," with the first episode presented as evidence of a
"pattern" of behavior. Cross-examination of the individuals
involved in the first report is often not allowed; the report is
accepted as "fact." In any event, the physician's attorney has no
power to compel testimony, and hospitals put pressure on
witnesses not to testify.

Disruptive behavior policies have "already been used to
remove...physicians who have a different opinion from
administration," says Jay A. Gregory, M.D., who chairs the AMA's
Organized Medical Staff Section (AM News 8/18/08).

Is Disruption Harmful?

To disrupt means to break apart, split up, rend asunder: a
very strong verb, used by hospitals in a highly pejorative sense.

The harmfulness, of course, depends on the object of the
verb. Disrupting a criminal conspiracy, for example, would be
good. And some disruptions are acceptable to hospitals.

When a œ13 billion computer system called Connecting for
Health disrupts emergency treatment and scheduled operations in
the UK, all the risks fall on patients. But "teething problems
are to be expected" and tolerated because of potential benefits
(Telegraph 8/10/08).

Especially, it seems, if the benefit is a data system that
would detect threats to a monolithic behemoth.

With the consolidation of hospital and insurance plans,
American medicine is dominated by very powerful players. But top-
heavy power is not secure. It needs the help of government and
its allies such as JCAHO to manage risks. The giants are correct
about the risks to their dominant position.

"Disruptive technologies always start at the bottom," writes
Clayton Christensen, coauthor of The Innovator's
Prescription: a Disruptive Solution for Health Care. Toyota
disrupted General Motors and Ford, starting with the very basic
Corolla. And the sparkplug is an individual.

Big hospitals fear exceptional physicians. Big insurers
worry about losing control over the mass of customers who seldom
incur a large medical bill (see p. 2).

Two types of monumental change are possible in the next few
years: the "safety" of rigid conformity, enforced by the
destruction of "outliers" or the disruption of financially
unsustainable monsters and a new outbreak of freedom.

Insurers Fear Disruption

Health plans have fired a warning shot at the brokers who
sell their products: "Stop efforts to save employers money by
combining two different types of insurance products, or you could
be kicked out of the sales network."

Employers have also been threatened with loss of coverage if
they combine high-deductible plans with self insurance to help
workers cover the deductible. Fewer than 4% of workers ever
exceed the deductible (Sacramento Bsns J 8/22/08).

Some concierge physicians, including Steven Knope, M.D.,
have been told they may be violating an insurance contract. Dr.
Knope does not bill insurers for any of his 120 concierge
patients, but he continues to see 100 Blue Cross members who did
not join his concierge practice. Contract termination would not
harm him financially, Dr. Knope said; Blue Cross would only be
hurting its subscribers (Arizona Republic 9/5/08).

Medical Bankruptcy

The idea that half of all bankruptcies are caused by medical
debt has become part of the folklore, writes Linda Gorman, who
debunks evidence for this assertion at www. john-goodman-
blog.com, Apr 2. David McKalip, M.D., also presents "The Real
Deal on Medical Bankruptcy," Consumer Power Report #143,
Sep 5, 2008. This is a timely response to frightening claims by
Divided We Fail, a joint effort of AARP, unions, the National
Federation of Independent Businesses (NFIB), and the Business
Roundtable.

On www.DividedWeFail.org,
it is claimed that "23% of Americans have difficulty paying
medical bills, and millions go bankrupt every year because of
medical costs."

Would universal coverage help? The bankruptcy rate for those
under age 55 has fallen since 1991, while the rate for those with
Medicare has increased 125% (ages 65-74) and 433% (age 75 or
over). Total bankruptcies in 2007: 822,590.

From an analysis of 2003 Delaware court data, considered
more reliable than survey data, Ning Zhu of UC Davis in a
September 2008 report concluded that moral hazard plays a part in
at least some bankrupt households, which over-consume knowing
that they only have to bear part of the true cost of their
purchases. An increase of one standard deviation in the ratio of
mortgage debt or credit card debt to household income increases
the risk of bankruptcy by 88% or 190%, respectively, while
medical conditions increase the rate about 50% from the baseline.
Overspending increases susceptibility to adverse events. Even
though medical costs have increased, they are less important in
the decision to file bankruptcy than 20 years ago.

Government Bankruptcy

The U.S. may have reached "Smith's threshold," writes Gerald
P. O'Driscoll, Jr. In The Wealth of Nations, Adam Smith
wrote that there has never been a single instance of sovereign
debts being repaid once "accumulated to a certain degree."

"Washington is quietly repudiating its debts" through
"pretend payments" with inflated dollars. "Anyone who works,
saves and invests is exposed to confiscation of his capital and
earnings through inflation" (Wall St J 8/22/08).

AAPS Calendar

Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.

A Deflation Threat?

The conventional view of government monetary policy is that
officials try to inflate the money supply at a rate that will
keep us in a safe zone between a double-digit inflationary boom
and a deflation bust. The assumption that the lines between boom
and bust are parallel is based on misunderstanding, writes
Richard Maybury (Early Warning Report, September 2008).
The lines converge, and the safe zone is narrowing. Each
injection of new money creates more malinvestment, more
disruption of business and spending and investing decisions.
Eventually, any injection large enough to avert a depression
triggers runaway inflation. [We've been through the Great
Depression; remember that World War I was once called the Great
War.]

Maybury has turned his velocity of money estimates (AAPS
News, August 2008) down three
notches, but thinks today's Fed's bias is toward hyperinflation.

By the measure of how many dollars are needed to avert
recession (now $2 trillion?), "virtually the whole economy is
malinvestment." Hardly anything is at the right price, Maybury
writes. In other words, the price system, the regulatory
mechanism of a free market, has been massively disrupted.

Tracking a "Never" Event

Betsy McCaughey, former lieutenant governor of New York, has
declared that the only acceptable rate for hospital-acquired
methicillin-resistant S. aureus is zero (Wall St
J 8/14/08). Checklists, nonpayment for treatment, and class-
action lawsuits are the proposed solution.

Robert Hamilton, M.D., thinks that hospitals' 15-20 year
problem with MRSA won't be solved by punishment: there's more
involved than negligent hospital staff, such as antibiotic usage
and foreign material as in prostheses and grafts.

In the UK, infection control efforts were disrupted by the
inability of Cerner's Millennium care records system to cope with
its superbug monitoring system for 18 months. Manual workarounds
had to be developed. MRSA flags disappeared, or if entered
erroneously could not be removed. Only MRSA and hepatitis A and B
can be flagged; a C. difficile enhancement was turned
down because of cost (E-Health Media 8/14/08).

"[E]agerness to appear intelligent...is a fairly recent
development among conservatives.... English Tories whom Mill
dubbed as the original stupid party did not share this desire....
[S]tupidity, as many of them no doubt hazily realized, was their
best defense against the inroads of clever madmen intent on
turning their world upside down men like John Stuart Mill, for
example,...who was willing to throw out the solid heritage of the
past in pursuit of the latest fad, dubbed by him 'experiments in
living'....

"Stupidity has been...the best defense mechanism against the
ordinary conman and the intellectual dreamer, just as Odysseus
found that stuffing cotton in his ears was his best defense
against [the] beguiling but fatal song of the sirens."

A License to Steal

In 1935, the U.S. Supreme Court agreed to hear three cases
concerning the cancellation of gold contracts. In the first two,
the Court declared that the federal government was entitled to
cancel the private contracts because the perpetuation of gold
clauses would have amounted to the "attempted frustration" of
"the constitutional power of the Congress over the monetary
system of the country."

In the third case, Perry v. United States, a man
who had purchased with gold a U.S. bond payable in gold was
seeking payment either in gold or in the equivalent in paper
currency. The face value of the bond was $10,000, but it would
have taken $17,000 in inflated currency to satisfy the contract.

The Court declared that the plaintiff was entitled to his
gold, since the government was obligated to keep its promises.
But in not paying in gold, the government did him no wrong
because it was now illegal to own the gold!

Speaking for the minority, Justice McReynolds wrote: "For
the government to say, we have violated our contract but have
escaped the consequences through our own statute, would be
monstrous. In matters of contractual obligation, the government
cannot legislate so as to excuse itself." [But so it did.]

The dissent concluded: "Loss of reputation for honorable
dealing will bring us unending humiliation; the impending legal
and moral chaos is appalling." (Thomas E. Woods, Jr., "The Great
Gold Robbery of 1933," http://mises.org/story/3056)

Florida Supreme Court Rules for Medical Staff

In Lawnwood Medical Center v. Randall Seeger, M.D.,
the Florida Supreme court upheld the lower courts (AAPS
News, February 2007) in finding a
special law unconstitutional.

"Because the HGL [St. Lucie County Hospital Governance Law]
grants Lawnwood almost absolute power in running the affairs of
the hospital, essentially without meaningful regard for the
recommendations or actions of the medical staff, we conclude that
the HGL unquestionably grants Lawnwood 'rights,' 'benefits' or
'advantages' that fall within the definition of the term
'privilege'...."

Florida, like 14 other states, has a constitutional
prohibition against granting a privilege to a private
corporation. This was a case of first impression in defining its
meaning.

AAPS Joins Amicus for Shammed Physician

Shall physicians control the quality of care in hospitals or
shall this be turned over to hospital owners and administrators?
This is the key question raised in Gil N. Mileikowsky, M.D.,
v. West Hills Hospital Medical Center, et al., now before
the Supreme Court of California.

West Hills terminated Dr. Mileikowsky's hospital privileges
on the sole authority of a hearing officer, who summarily
terminated the peer review hearing to which the doctor was
indisputably entitled, as a discovery sanction.

The amicus brief authored by the American Association for
Justice (formerly the Association of Trial Lawyers of America)
and joined by AAPS argues that: "If physicians are not
sufficiently independent and protected against retaliation, they
cannot serve as advocates for quality care nor act as a brake on
the hospital's drive for profits."

A physician that a hospital calls "disruptive" is not
necessarily a bad physician, the brief argues. Indeed, "it is not
uncommon to find that a disruptive practitioner is, in fact,
highly intelligent, clinically superior, even medically
outstanding." Hospitals are using such pretexts to "dispatch
mavericks, whistleblowers, and other nonconformists."

As a prior Court held, "Considerations of harmony in the
hospital must give way where the welfare of patients is involved,
and the physician by making his objections known, whether or not
tactfully done, should not be required to risk his right to
practice medicine."

ISMA Studies Sham Peer Review

The Indiana State Medical Assn House of Delegates referred a
2007 resolution opposing sham peer review, authored by AAPS
member Roger E. Jones, M.D., to the Board of Trustees. A task
force found that peer review was of strong interest but did not
find a current widespread problem or crisis. An ISMA survey
elicited 384 responses. Of the 14% who participated as a
subject/reviewee in peer review, 26% said they witnessed misuse
or abuse. Of the 54% who participated as a reviewer, 12% said
they witnessed misuse or abuse. The ISMA says it will continue to
focus on the issue.

FTC Sued over Use of History

The Native Essence Herb Company of New Mexico has sued the
Federal Trade Commission to strike down guidelines that prohibit
the company from posting on its website historical use
information, much of which was taken from federal government
websites. The lawsuit was filed by Richard A. Jaffe, Esq., author
of Galileo's Lawyer. He argues that FTC guidelines
violate the First Amendment.

Internet, Tax Law Used against Health Fraud

The decades-old strategy used to convict Al Capone is being
used against doctors in the California Fraud Interdiction
Program a stroke the FBI describes as "brilliant." The 50 Crook
Project has identified 50 doctors to whom Medicare paid $122
million in allegedly false claims over 3 years (an average of
$800,000/yr per doctor).

Los Angeles Assistant District Attorney Albert H. MacKenzie
recommends that the IRS conduct searches on any provider who has
received a minimum amount, say $100,000, from Medicare. He has
created a network of thousands of insurance companies, self-
insured entities, associations, and Medicare or Medicaid offices,
from which he can obtain the gross amount paid to each suspect
over the past 6 years. If the suspect has failed to file with the
California Franchise Board or has underpaid taxes, this creates
probable cause so prosecutors can obtain a search warrant for
homes and offices, which often leads to still more charges of
money laundering.

Even if all the illegal income is reported, all deductions
for things like employee salaries and rent would be disallowed.

Physicians, dentists, lawyers, and owners of medical
facilities have been convicted and sentenced to prison terms up
to 15 years and restitution of more than $20 million.

Restitution is rarely collected in full because multi-
million dollar fraud rings quickly wire the money out of the
country or convert it to cash, MacKenzie said (BNA's
HCFR 8/13/08).

Or could it be just that the doctor is now destitute?

Correspondence

Expedited Snooping. Several employees of Sparrow
Hospital in Lansing, MI, were fired or disciplined for accessing
the governor's electronic medical records without authorization
(AM News 9/1/08). The EMR has made this type of snooping
much easier. Previously, the snooper would have to go to the rack
and pull the chart, probably attracting notice. Now snoopers can
simply log on at the terminal of their choice. These employees
were caught by a routine audit. Computer-savvy snoopers, however,
probably would not be caught. And one wonders whether they would
have been punished had the patient not been a high-profile
politician.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

A Secret Weapon. Perhaps we would better prepare
today's pre-meds for their professional futures by cutting their
dosage of egghead chemistry and adding a few straight shots of
pure science fiction: Brave New World, 1984,
and Levin's This Perfect Day, about a world dominated by
one central computer....

Are those who ballyhoo electronic records as the panacea
really concerned about patient treatment? Or has someone designed
a surreptitious weapon for the control and domination of
tomorrow's MDs? If all goes according to plan, every deed,
thought, and key-stroke of future physicians will flow directly
into huge pools of data, to be sifted, churned, probed, prodded,
judged, and graded, without once being touched by human hands....
Having never won an argument with an electronic gizmo, I have
little doubt that UniComp, the all-knowing computer, will soon be
running the show.
A.E. Miller, M.D., Blackfoot, ID from IMA Newsletter, www.idmed.org

Newspeak. We must resist the terms "disruptive" or
"impaired" physicians. These are keywords of Soviet-style
manipulative propaganda. Common sense needs to return. Sadly,
there are physicians who are as they were called in the
past alcoholics or addicts. Often, they need help more than
punishment. But today drunks, if convenient for authorities, may
be allowed to practice, but abstinent physicians, if inconvenient
for administrators, may be referred to "Addiction Recovery
Centers."
Walter Borg, M.D., Lafayette, LA

EHR in the Real World. The electronic health record was
supposed to increase productivity and revenue, but it has not. It
has required resubmission 3 or 4 times over 6 to 8 months to get
reduced and bundled payments. What a waste of $70,000! Moreover,
when the computer dumps 3 hours of data entry, I have to do it
all over again!
T.A. O'Connor, M.D., Milwaukee, WI

Patient Spies. I wrote to the AMA to express my outrage
over the AMA's support of fake patients spying on doctors.
According to a June 12 Associated Press story, the ethics council
of the AMA is urging doctors to endorse hospitals' practice of
hiring undercover patients to grade their health care experience.
It is this de-professionalization of medicine that prompted me to
leave clinical practice in my mid-50s, and to resign from the
AMA. Hired spies are commiting fraud and wasting resources and
doctors' precious time.

AMA Communications Coordinator Rashida Carter replied that
reports such as the one on "secret shoppers" are discussed in the
House of Delegates. This one was referred for further work to the
Council on Ethical and Judicial Affairs.
Elizabeth Kamenar, M.D., Mountaintop, PA

Universal Reality. Many people want the government to
take care of them; however, the only way to achieve universal
coverage is for everyone to be in a Medicaid-style program. This
is not sustainable. The message we need to deliver is: "Congress
has made a promise it can't keep: Medicare. They will use
politics, corporate cronyism, rationing, and cookbook medicine to
fool you into believing they are delivering on their promises.
The best hope for access to medical care is more individual
ownership and control of medical financing."
David McKalip, M.D., St. Petersburg, FL

The Key to the Solution. Fixing the current morass will
be very difficult, but it must start with bringing the market
back to the patient and the doctor. We must get the
third party out of the middle; this requires taking control of
the data. The data belongs to the patient and is not for
sale. But the AMA is involved in the sale of data; for
example, it works with SureScripts. Would it relinquish this
source of revenue?
Marcy Zwelling-Aamot, M.D., Los Alamitos, CA

Taxes v. Deficits. Taxes are the oxygen of government
(and government regulation). Too much government is the main
threat to productivity, liberty, and the pursuit of happiness.
You must hold the line on taxes, or the entire economy grinds to
a halt. The national deficit, on the other hand, is implicitly
controlled by self interest in the international bond markets. If
the U.S. government, which promises to pay based on the strength
of its tax collections, tries to borrow too much, the cost goes
up. If it tries to borrow more, no one will give it their money
for its worthless paper. End of government expansion. A real
cynic would ask which has a more negative effect on productivity:
spending it on debt service, where it goes from taxpayers to
private citizens, or spending it to fund yet another expansion of
Medicaid.
Linda Gorman, Ph.D., Independence Institute, Golden,
CO